Structure, scope and application matter just as much as how many total exemptions there are.
Recently, a bunch of folks like me from other states discussed a question posed by one of our own to a group listserv: “Any idea how many exemptions your state has enacted and in what categories? Is this making open records laws more meaningless than we realize?”
Florida and Washington, both with reputations as being better at transparency than most states, have roughly 1,200 and 700 exemptions, respectively. New York? Just 11. Kentucky – 19. Pennsylvania – 30. Ohio — 56.
Virginia is closer to 150 discretionary exemptions, broken down into 8 categories that roughly mirror the federal FOIA. In addition, there are at least that many more prohibitions on release scattered throughout the Code of Virginia. I would assume that that’s what ratchets up the total numbers in Florida and Washington, and everyone who was part of the conversation confirmed that plenty of laws that make certain records confidential exist outside the confines of their state’s open records act.
I hear from a lot of people — reporters in particular, for some reason — who lament the number of exemptions and point to that number as evidence that Virginia is worse than anywhere else. But as noted by the disparity in numbers above, I think the focus on numbers misses the point.
Don’t get me wrong: there are TOO MANY exemptions and prohibitions. Ever since VCOG’s founding 30 years ago, we have fought against the addition of dozens and dozens of proposed exemptions or prohibitions. Nonetheless, consider….
Federal FOIA has only 7 exemptions, but those exemptions are broadly worded and can be used — as we know from years of experience — to cover vast amounts of information.
Florida, as noted, has nearly 1,200 exemptions, yet those exemptions tend to be very narrowly drawn to address one specific type of record or situation.1Virginia is somewhere in the middle in that there are some broadly worded exemptions, but then most are written to apply to just one agency or just one situation or type of record, and they often include eventual release upon the completion of some event.
In other words, not all exemptions are created equal.
Exemptions proliferate as government grows
Another thing to consider is that year after year, the government continues to grow and become more complex. Many of the exemptions and prohibitions added over the years address new programs or statutory schemes that didn’t exist 20 years ago. Often, these new initiatives are similar to existing programs that already have some specific exemption tied to them. The policy question for legislators is: Does it make sense to say that one gets an exemption and the other doesn’t? Of course, I would likely say — and probably did during the legislative process — that the FIRST exemption shouldn’t have been added. But once it HAS been added, it’s a much harder case to make that similar situations shouldn’t also be protected.
Now, I would agree with the folks on the chat that finding all of the exemptions and prohibitions outside of FOIA is a real chore. I heard from a few folks who said their state keeps a database of those provisions. Virginia’s FOIA Council kept a list at one point, and they may still, but I can’t find it on their website. A VCOG summer intern compiled a chart a few years ago that I really should dust off and make available, even if it’s already out of date. But for the most part, you’re on your own.
One of the reporters in the chat complained that because they are so hard to find, it is difficult to know ahead of time whether a record is exempt or not. I responded, “I always recommend to both citizens and reporters that they should ask for the record regardless of whether a record will or can be withheld. Put that burden on the government to decide: Some will err on the side of disclosure, others won’t.”
Further, a denial under Virginia FOIA must cite the FOIA exemption or other law that allows a record to be withheld or redacted. The denial has value in and of itself. If you want to go to court to challenge the application of an exemption to a particular record, you need to know what the exemption is so that the judge has something to go by. Plus, it’s of interest to a news story in this kind of vein: “Hey, we wanted to show you the XYZ-document, but we were denied access to it because this law prohibits it or because the government has chosen to use a discretionary exemption to withhold it.”
Finally, and this can’t be repeated enough, the problem is less with the number of exemptions or the words on the page, and much more about how those exemptions are applied. Will state and local officials apply them narrowly, as FOIA’s policy statement directs, or will they push the envelope until someone pushes back in court?
I 100% agree that there are too many exemptions. But whether or not that demonstrates an overall trend towards more secrecy must be considered in light of the structure, function and application of the exemptions as much as it would on the numbers.
I think that exemptions in Florida have a sunset date on them so that they have to be reviewed every so often to see if they are still needed. Whether or not that’s still the case in Florida, it’s something I would strongly favor having in Virginia.